1. Applicant's Name: a. Application Date: 15 August 2019 b. Date Received: 19 August 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, was a victim of military sexual trauma by a senior NCO within the chain of command. The attacker was a senior NCO (Sergeant Major) whom had a lot of influence on the separation. Due to the attacker being head of the chain of command everything always went through him. The battalion sergeant major nor battalion commander were aware of the SHARP (rape incident) between the applicant and sergeant major. The applicant does not believe that the discharge characterization was justified due to the circumstances. The discharge prohibits the applicant from using military benefits to finish a bachelor's degree. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder, Major Depressive Disorder, Borderline Personality Disorder, and Mood Disorder. The applicant is 60% service-connected from the VA. The VA has also diagnosed the applicant with Borderline Personality Disorder, MST, and Insomnia Disorder. In a records review conducted at Arlington, VA on 11 December 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service and the circumstances surrounding the discharge (i.e. post-service diagnosis of MST). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 31 July 2019 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 6 June 2019 (2) Basis for Separation: The applicant was informed of the following reason for her discharge; she was blatantly disrespectful of members of her chain of command and senior noncommissioned officers to include multiple Command Sergeants Major by using obscene language and hand gestures (6 March 2019). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 June 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 July 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 September 2016 / 4 years, 27 weeks b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 2 years, 10 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Mental Status Evaluation, dated 14 March 2019, revealed the applicant had diagnoses of major depressive disorder and borderline personality disorder. It was recommended that an associated chapter be initiated. The applicant met exclusion criteria that would typically prevent behavioral health from approving a chapter separation based on conduct. However, in this instance it is behavioral health's recommendation that the exclusion be waived due to the level of dangerousness and chaos that the applicant presents with. A negative counseling statement, dated 18 March 2019, for being informed of initiation of separation action FG Article 15, dated 29 March 2019, for being disrespectful in language and deportment toward SGM D.S.II, and SGM S.W., noncommissioned officers, who were in the execution of their office, by saying to them, "F you," or word to that effect and "I don't give a f " or words to that effect (6 March 2019); and wrongfully use reproachful gestures, raising the middle finger toward SGM D.S.II, U.S. Army and SGM S.W., U.S. Army (6 March 2019); reduction to PVT / E-1, forfeiture of $840 pay for two months (suspended), extra duty and restriction for 45 days (both suspended). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Lincoln Trail Behavioral Health System document, dated 21 March 2019, relates the applicant had diagnoses of major depressive disorder, recurrent, mild and borderline personality disorder. The applicant submitted a Victim Reporting Preference Statement that shows she filed an unrestricted sexual assault report on 27 June 2019. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); Victim Reporting Preference Statement (two pages); and a Lincoln Trail Behavioral Health System document (two pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant seeks relief contending, she was a victim of military sexual trauma by a senior NCO within her chain of command; her attacker was a senior NCO (Sergeant Major) whom had a lot of influence on her separation; due to her attacker being head of her chain of command everything always went through him; and her battalion sergeant major nor battalion commander were aware of her SHARP (rape incident) between her and the sergeant major. The record of evidence shows that the applicant filed an unrestricted sexual assault report on 27 June 2019. The record also shows a CID letter, dated 2 July 2019, sent by email to the applicant's unit commander stated that per their conversation, CID was not initiating an investigation into the alleged incidents regarding the applicant. CID was notified that applicant may have been the victim of a sexual assault several years ago; however, no further information was available. CID was advised that when facing separation from the Army, the applicant considered making a formal law enforcement statement, but later decided not to. Without a statement of further information, CID could not launch an investigation, as USACICC can only investigate offenses that occur on military reservation and / or have a known military suspect. The applicant further contends, she does not believe that her discharge characterization was justified due to the circumstances. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The applicant also contends, her discharge prohibits her from using her military benefits to finish her bachelor's degree. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 11 December 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service and the circumstances surrounding the discharge (i.e. post-service diagnosis of MST). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / RE-1 Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190011565 4